Crumley v. Memorial Hospital, Inc.

• Decision Date: 24 April 1979
• Docket Number: No. CIV-2-77-46.,CIV-2-77-46.
• Citation: 509 F. Supp. 531
• Parties: William A. CRUMLEY, etc., Plaintiff, v. MEMORIAL HOSPITAL, INC., Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

509 F. Supp. 531

William A. CRUMLEY, etc., Plaintiff, v. MEMORIAL HOSPITAL, INC., Defendant.

No. CIV-2-77-46.

United States District Court, E. D. Tennessee, Northeastern Division.

December 22, 1978.

On Motion For Involuntary Dismissal April 24, 1979.

Howell H. Sherrod, Jr., Johnson City, Tenn., for plaintiff.

Walter L. Price, Johnson City, Tenn., for defendant.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

This is an action for the recovery of damages for wrongful death arising from medical malpractice. 28 U.S.C. § 1332(a)(1), (c). The plaintiff moved for a summary judgment,¹ Rule 56, Federal Rules of Civil Procedure, on the issue that "* * * the administration of anesthesia by Dr. Oswald Berrios on April 2, 1974, was a proximate cause of the death of her decedent. * * *" That motion lacks merit.

In support of her motion, the plaintiff relied on the answer by a question posed by Dr. Henry Price at the taking of his deposition. Such physician, apparently after having reviewed certain medical records provided him, stated his conclusory opinion that the cause of the death of the plaintiff's decedent was his suffering "* * * a cardiac arrest caused by hypoxia, which was caused by the improper administration of anesthesia. * * *" Assuming arguendo that Dr. Price is a competent witness herein,² summary judgment is still not appropriate.

As a general rule, opinion testimony is not an appropriate basis for the granting of a motion made under Rule 56, supra. Sartor v. Arkansas Nat. Gas Corp. (1944), 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967, 972; Hughes v. American Jawa, Ltd., C.A. 8th (1976), 529 F.2d 21, 252; Elliott v. Massachusetts Mut. Life Ins. Co., C.A. 5th (1968), 388 F.2d 362, 3653; Kern v. Tri-State Ins. Co., C.A. 8th (1967), 386 F.2d 754, 7562, 3. This is so, because the opinion of an expert witness is not conclusive and any weight and effect to be given such evidence, if admitted, is a function for the trier(s)-of-the-facts. Sartor v. Arkansas Nat. Gas Corp., supra, 321 U.S. at 627-628, 64 S.Ct. at 728-29, 88 L.Ed. at 972-973. Thus, the deposition testimony of Dr. Price "* * * is merely an expression of opinion and does not negate the existence of an issue of fact on a motion for summary judgment. * * *" Gillentine v. McKeand, C.A. 1st (1970), 426 F.2d 717, 72211.

The Court recognizes that there are exceptions to this general rule, and that, in certain cases where expert testimony must be presented on an issue of fact, summary judgment may be appropriate on the opinion of an expert. 10 Wright & Miller, supra, at 692-694, § 2738. Here, however, the issue of proximate causation is interwoven with the issue of negligence.

In this circuit, negligence cases "* * * are ordinarily not susceptible of summary adjudication, but should be resolved by trial in the ordinary manner. * * *" Rogers v. Peabody Coal Company, C.A. 6th (1965), 342 F.2d 749, 7515, 6; accord: McTavish v. Chesapeake and Ohio Railroad Co., C.A. 6th (1973), 485 F.2d 510, 5134. Under the circumstances presented, "* * * a full inquiry into the facts under usual trial procedure is advisable. * * *" S. J. Groves & Sons Company v. Ohio Turnpike Commission, C.A. 6th (1963), 315 F.2d 235, 237-2381.

For such reason, the motion of the plaintiff for a summary judgment hereby is

OVERRULED.

Although the Court would like to accommodate counsel in their preparation for trial, by determining pretrial the competency of Dr. Price as a witness herein, it is unable to do so. The affidavit of counsel for the plaintiff indicates that there is a possibility that he may have available as a trial witness an unnamed anesthesiologist from Knoxville, Tennessee. Thus, as of now, it does not appear that, without Dr. Price, "* * * the appropriate witnesses otherwise would not be available. * * *" T.C.A. § 23-3414(b). The Court is of the opinion tentatively, however, that the waiver provision of the aforementioned statute should be applied liberally in a situation where a plaintiff is unable, after exercising reasonable diligence, to obtain expert witnesses to testify in her favor except by going outside Tennessee and states contiguous to it. That approach would be in accordance with the duty of this Court to construe and apply the rules of evidence "* * * to the end that the truth may be ascertained and proceedings justly determined." Rule 102, Federal Rules of Evidence.

ON MOTION FOR INVOLUNTARY DISMISSAL

The plaintiff, as the representative of her decedent-husband's estate, seeks to recover from the defendant-hospital compensatory and punitive damages for his wrongful death. This action was conceived originally as a medical-malpractice action, see I, pretrial order herein of July 20, 1978; however, it is viewed more appropriately as an action arising from the alleged failure of the hospital to use due care in the selection of a particular anesthesiologist as one of its clinical staff physicians and its further alleged failure to use due care in retaining him as a member of its staff after his professional incompetence and lack of skill became apparent.

The plaintiff's decedent Mr. William L. Crumley was a patient in the hospital of the defendant Memorial Hospital, Inc. in Johnson City, Tennessee on April 2, 1974. On that date he underwent therein a surgical procedure involving a small, fixed bone in his ear. Dr. W. M. Mathis was his surgeon, and someone other than the plaintiff or her decedent had arranged for Dr. Oswald Berrios, a physician and anesthesiologist to administer anesthetics to him during that surgery.

Although a continuing moot question in the defendant's hospital and other hospitals is said to be whether the operating surgeon or the administering anesthesiologist is "in charge" of surgical procedures, "* * * it is the custom and practice that the operating surgeon is in complete charge of the surgery room and all personnel connected with the operation. In matters of professional skill and decision, it is the duty of the personnel (nurses, anesthetists, and others) who may assist, to obey explicitly the orders of the surgeon. * * *" Rural Educational Association v. Bush, C.A. Tenn. (1956), 42 Tenn.App. 34, 298 S.W.2d 761, 765, certiorari denied (1957). That expression as to this matter of an intermediate appellate court of Tennessee, with petition for certiorari denied by the Supreme Court of Tennessee, should put to rest any intraprofessional controversy concerning it.

In the course of such procedure, Dr. Mathis found it feasible to utilize a specially-designed microscopic device to deal with an area of some 2 × 3 millimeters in the decedent's ear. This required intensive concentration of the surgeon upon that area. Dr. Mathis had progressed to the point of inserting therein a tiny prosthesis when he overheard Dr. Berrios call for the drug adrenalin. Dr. Mathis continued his surgical work, and in a few moments was asked by Dr. Berrios if the latter might look at the pupils of the decedent's eyes. Dr. Mathis inquired the reason therefor, and Dr. Berrios reported that the decedent's pulse was weak, and his blood pressure was low. Dr. Mathis inquired whether Dr. Berrios wished to look immediately, and Dr. Berrios replied: "Yes, the patient might be dead." Instantaneously, the drapes were removed from over the decedent's body, and these two physicians examined the decedent's pupils; he was found to have suffered a cardiac arrest and anoxic brain damage. He expired from anoxic brain damage on April 5, 1974.

At the conclusion of the plaintiff's evidence, the defendant moved for an involuntary dismissal of her claim on the ground that upon the facts and the law she had shown no right to relief, Rule 41(b), Federal Rules of Civil Procedure. The specific grounds therefor are:

1. that the plaintiff failed to prove the standard of care required of hospitals in this geographical area, in selecting, suspending and revoking privileges of members of medical staffs;

2. that the plaintiff failed to prove the defendant's negligence in granting Dr. Berrios privileges as a staff anesthesiologist or in failing to suspend or revoke them seasonably; and,

3. that evidence that Dr. Berrios had been granted fellowship in the American College of Anesthesiologists and had been granted a license by the Tennessee state licensing board for the healing arts created a prima facie presumption of his competence and skill as an anesthesiologist.

This is an action in which the Court's jurisdiction has been invoked on the basis of the diverse citizenships of the parties and the requisite matter in controversy. 28 U.S.C. §§ 1332(a)(1), (c). Both the claimed tort and the injury occurred within Tennessee. Thus, the substantive law of Tennessee applies. 28 U.S.C. § 1652; Telecommunications, E. S. & S. Co. v. Southern T. S. Co., C.A. 6th (1975), 518 F.2d 392, 3944. There is merit to the second ground of the defendant's motion.

The rule in Tennessee is that, if a health-provider selects a physician who is skilled and competent in his or her profession, it is not liable for any mistake that physician may make at a subsequent time. Quinn v. Railroad (1895), 94 Tenn. 713, 30 S.W. 1036, 28 L.R.A. 552, 45 Am.Sr.Rep. 767, cited by Mr. Justice Potter Stewart (while a judge of this federal circuit) in Union Carbide & Carbon Corporation v. Stapleton, C.A. 6th (1956), 237 F.2d 229, 232. In the same year, the late Chief Justice Grafton Green characterized the standard of care implicated and explicated the rationale underlying that decision, as follows: "* * * In Quinn v. Railroad, * * *, it was held that a master, having used due care in the selection of a physician to treat his injured servant, is not responsible for the negligence or malpractice of that physician. This, because a physician uses his own judgment in the treatment of a patient. * * *" Revell v. McCaughan (1931), 162 Tenn. 532, 538(3), 39 S.W.2d 269.

It is believed that the converse of that is true, viz.,...